Nigro v. United States (27 F.2d 1019, 1928)

PER CURIAM.

This is a writ of error to a judgment of conviction for violation of the Harrison Anti-Narcotic Act (Act Dec. 17, 1914, 38 Stat. 785, amended February 24, 1919, 40 Stat. 1130, re-enacted November 23, 1921, 42 Stat. 298, and re-enacted June 2, 1924, 43 Stat. 328 (U. S. C. tit. 26, §§ 211, 692, 696, 700 [26 USCA §§ 211, 692, 696, 700]; Comp. St. §§ 6287g, 6287h, 6287n). The indictment contained two counts: One under section 8 of the act (26 USCA § 700; Comp. St. § 6287n) for unlawful possession; the other under section 2 (26 USCA § 696; Comp. St. § 6287h) for unlawful sale not in pursuance of a written order on the official blank. The defendant was convicted on both counts, but the sentence imposed was such as might have been given under either count alone.

This court upon a consideration of the cause was of the opinion that the conviction could not be sustained on the first count, inasmuch as the charge of the trial court was at variance with the views of this court as expressed in the cases of O’Neill v. United States, 19 F.(2d) 322, and Butler v. United States, 20 F.(2d) 570. As to the second count, this court, being in doubt with reference to the proper construction of the first sentence of section 2 of the a